More Political Football at the Expense of Judges: Obama Appointments A Threat to the Rule of Law

Brian Tamanaha

In an Op-Ed in the Wall Street Journal today, Steven Calabresi, Professor of Law at Northwestern University Law School, Co-Founder of The Federalist Society, raised the stakes in the traditional conservative sport of flogging courts for political gain.

If Obama is elected, he warns ominously, the “legal left” will take over the federal appellate courts. Obama’s view, Calabresi tells us, “requires the appointment of judges committed in advance to violating [their judicial] oath.”

What will happen when the legal left takes over the federal courts?

"[A]ny or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants…”

This is hysterical (in all senses of the term) stuff, an extremely unlikely parade of horribles based upon little more than the fertile imagination of conservatives.

Calabresi’s argument has an obvious asymmetrical quality. Judges appointed by Democratic presidents decide cases based upon their political views; whereas judges appointed by Republican presidents decide cases according to the law.

We’ve heard this baloney many times from the right, although it’s disappointing to see it coming from a respected law professor. Call me old-fashioned or naive, but I believe that the vast majority of judges, Republican-appointed and Democratic-appointed, decide the vast majority of their cases in accordance with their best reading of the law. (Empirical studies of judging support this, at least below the Supreme Court.) Yes, the political views of judges sometimes influence their decisions, but generally at the margins, when the law is uncertain. (That's why the Supreme Court, which hears a higher proportion of legally uncertain cases, is different.) And this will occur regardless of whether the judges are appointed by Republicans or Democrats.

Here is the penultimate line of Calabresi’s full-throated fear piece: “Nothing less than the very idea of liberty and the rule of law are at stake in this election.”

The suggestion that Obama’s judicial appointments will spell the demise of the rule of law is absurd. Calabresi is too smart to believe what he wrote.

Conservatives who truly care about the “rule of law” should resist the impulse to smear judges—including judges appointed by their opponents—as people who will violate their judicial oath and decide cases in a brazenly political fashion.

Calebresi is arguing that Obama favors judges that are as “activist” and perhaps more so than the Warren Court, which Obama thinks was not all that “radical.” He gives some examples of the types of rights that might be found by such judges.

Are you arguing with Calabresi about the types of judges Obama is likely to appoint and the types of decisions they are likely to make? Are you denying that there is such a thing as more activist judges who are interested in shaping the law to fit their ideological/political agenda? Or are you simply arguing with his opinion that this type of judging is inconsistent with the rule of law?

Obviously this type of op-ed paints with a broad stroke and may use rhetoric that one would not expect in a law review article. But I am pretty sure I have heard lots of leftist law professors use similar (or worse) rhetoric with regard to conservative judges. Is there a distinction I am missing? (Besides, of course, the fact that you agree with the leftists.)

The suggestion that Obama’s judicial appointments will spell the demise of the rule of law is absurd. Calabresi is too smart to believe what he wrote.

Indeed. Somehow Calabresi finds it in him to sound quite reasonable when he's being interviewed by Scott Horton, but when he takes to the pages of the WSJ he turns to full-blown hackery, and whatever slight respect I might have for him as a reasonable professor of law is lost.

If it looks like a hack, and quacks like a hack, it's probably a hack. So, can we cut through the niceties and just acknowledge that however smart he might be, Calabresi is just another hack Republican.

In a Sept. 6, 2001, interview with Chicago Public Radio station WBEZ-FM, Mr. Obama noted that the Supreme Court under Chief Justice Earl Warren "never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society," and "to that extent as radical as I think people tried to characterize the Warren Court, it wasn't that radical."

He also noted that the Court "didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted." That is to say, he noted that the U.S. Constitution as written is only a guarantee of negative liberties from government -- and not an entitlement to a right to welfare or economic justice.

While the far more disturbing portion of this revealing Obama interview was his call for massive redistribution of wealth through the political branches, Obama's above implied criticism of the not so radical Warren Court for failing to "break free from the essential constraints that were placed by the Founding Fathers in the Constitution" should be appalling for anyone who values the rule of law.

The question should not be why Professor Calabresi is sounding the alarm, but why more of his colleagues are not joining him.

in re: National Energy Policy Discussion Group. It would be interesting to discuss, with respect to the monkier 'activism', the outcome of this case, which remained in courts years after the Vice President obtained his shield from the sunshine law and kept the meetings' proceedings secret. We kept quiet in that duck blind, you know. No talking shop, whatsoever.

Obama's above implied criticism of the not so radical Warren Court for failing to "break free from the essential constraints that were placed by the Founding Fathers in the Constitution" should be appalling for anyone who values the rule of law.

Bart, where you see "implied criticism" I see a plain statement of fact. From the interview:

To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf. And that hasn’t shifted.

So is a fairly accurate description of the extent of the Warren court's "radicalism" now an "implied criticism" of such restraint? I don't see it.

Bart, where you see "implied criticism" I see a plain statement of fact.

I bolded the key passage:

Obama commented that the Warren Court "wasn't that radical" because it "didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted."

These comments imply that it is permissible to interpret away "the essential constraints that were placed by the Founding Fathers in the Constitution" and the not so radical Warren Court should have done so. After all, as Obama commented later, the failure of the civil rights movement to implement major "redistributive change" through the courts was a "tragedy".

Obama's utter disregard for "the essential constraints that were placed by the Founding Fathers in the Constitution" is further revealed by his several votes to support firearm prohibition in Illinois and his more recent two faced claim that he believed that the Second Amendment guarantees an individual right to keep and bear arms while claiming that DC's nearly complete prohibition of an individual right to keep and bear arms was permitted under the 2d Amendment.

I find it both amusing and profoundly disturbing that those who accuse Mr. Bush of violating imaginary "constitutional rights" belonging to foreign enemy combatants are not in the least disturbed by Mr. Obama's repeated record challenging "the essential constraints that were placed by the Founding Fathers in the Constitution."

Bush has appointed how many right-leaning judges to the appeals court? Today's NY Times has an article, Conservatives Have Reshaped Appeals Courts. In it, we learn that Republican-appointed judges, most conservatives, now make up 61 percent of the bench, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while Democrat-appointed judges have a dwindling majority on just one circuit. Now Mr. Calabresi is crying that the sky is falling because a Democrat is going to be president and he will appoint the wrong kind of judge. It's an old, time-worn, stupid argument. Tell me something interesting.

I find it both amusing and profoundly disturbing that those who accuse Mr. Bush of violating imaginary "constitutional rights" belonging to foreign enemy combatants are not in the least disturbed by Mr. Obama's repeated record challenging "the essential constraints that were placed by the Founding Fathers in the Constitution."

Again, where you see a challenge, I only see a conclusion. I don't see a single word that can be construed as an endorsement of this approach, and I don't know how it's possible for this to be open to interpretation. Frankly it's not, unless you have an ideological point to score.

As for all the right-wing hysterical hand-wringing over these comments, I have yet to see an actual, concrete explanation of exactly how Obama is supposed to pack the court with judges who will "redistribute" wealth in our society on an unheard of scale. However, it is very easy to imagine how a President could abuse his authority as commander-in-chief and head of the national security apparatus and justify outrageously unconstitutional acts because courts generally defer to the executive on matters of national security. In fact, the Bush administration offers repeated examples of how this can be done, and many more possibilities can be formulated by anyone who spends about five minutes thinking about it. Strangely, no one on the right seems at all bothered by the precedent that Bush has established for Obama; rather, they are concerned about a phantom cabal of judges engaging in wild judicial activism to do what I suppose will be impossible for Obama to accomplish even though he will most certainly enter office with large majorities in the House and the Senate. Really, one must plumb the depths of conservative paranoia to even come up with such fanciful scenarios.

Bart, where you see "implied criticism" I see a plain statement of fact.

I bolded the key passage:

Obama commented that the Warren Court "wasn't that radical" because it "didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted."

These comments imply that it is permissible to interpret away "the essential constraints that were placed by the Founding Fathers in the Constitution" and the not so radical Warren Court should have done so. After all, as Obama commented later, the failure of the civil rights movement to implement major "redistributive change" through the courts was a "tragedy".

“If you look at the victories and failures of the civil rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it I’d be okay."

"But," Obama said, "The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it's been interpreted, and Warren Court interpreted in the same way that generally the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn’t shifted."

Obama said "one of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still stuffer from that."

The tragedy was the civil rights movement became too court focused, instead of focusing on organization and legislation. Most “i-don’t-like-activist-judges” conservatives should appreciate his emphasis on change through the elected branches.

Further, your “bolded” text is carefully taken out of context to prevent an honest reading of the passage. Obama argued the Warren Court interpreted the Constitution as all previous courts did (from a personal liberties viewpoint) – as a charter of negative liberties.

Obama's utter disregard for "the essential constraints that were placed by the Founding Fathers in the Constitution" is further revealed by his several votes to support firearm prohibition in Illinois and his more recent two faced claim that he believed that the Second Amendment guarantees an individual right to keep and bear arms while claiming that DC's nearly complete prohibition of an individual right to keep and bear arms was permitted under the 2d Amendment.

I find it both amusing and profoundly disturbing that those who accuse Mr. Bush of violating imaginary "constitutional rights" belonging to foreign enemy combatants are not in the least disturbed by Mr. Obama's repeated record challenging "the essential constraints that were placed by the Founding Fathers in the Constitution."

Ahhh, the Second Amendment must be enforced at all times, but the writ of habeas corpus is optional dependant on the mood of the all-powerful CiC. Your intellectual consistency shines through always…

p.s. you’d do yourself some good listening to the Obama interview. You might learn the second amendment does not give you a right to bear arms, but instead explicitly reminds the federal government that it does not have the power to infringe upon it. Likewise, the prisoners in GITMO do not have “imaginary constitutional rights,” rather, the government has real, explicit limitations on its powers, including a limitation on the suspension of the privilege of the writ of habeas corpus to only certain situations.

Is anyone laboring under the illusion that his utterances will change election outcomes?

Oh, he's one of those powerful Federalists? Really, haven't the Federalists shot themselves mightily in the foot with their boy Dubya? Perhaps they should have found a competent dude to carry their flag. It looks less wonderful after Dubya shat on it and used it to torch the Constitution and wet it to torture prisoners and threw the remains in to clog the gears of the financial system and with its grotty entrails wrote misspelled dirty words on bathroom walls. Any Federalist who doesn't wince these days whenever Dubya speaks is just not getting it.

Calabresi's newly discovered love of oaths should be put to good use.

The rest of us will note that somehow despite his dire warnings the sky didn't fall.

What I find interesting is that anyone should be surprised that Professor Calabresi expressed himself as he did in the WaPo op-ed.

The Federalist Society for Law and Public Policy Studies is the principal neoconservative front organisation dedicated to rolling back the remaining liberal influences in the American Judiciary and legal professions. Founded in 1982, the Federalist Society describes itself as "a group of conservatives and libertarians dedicated to reforming the current legal order." It was more explicitly described by its own executive director, Eugene Meyer, in a 1996 guest editorial in a Heritage Foundation publication. Meyer wrote that his organisation:-

""has built a network designed to overcome legal abuses and to return America to a legal system which operates according to the design of the founders. Through this network of right-wing lawyers, government officials, scholars and judges, the Society seeks to fundamentally remake the American legal system." The split infinitive notwithstanding, that mission statement has to be borne in mind. "For "fundamentally remake" read "pervert".

The Society is one of the primary organisations designed to achieve the shift to the right in favour of American business advocated in The Powell Memorandum and to that end it has a spider's web of connections to extreme right wing Foundations, to the Anti-Environmental lobby, to the Christian Fundamentalists, to pro-life groups, to the Christian Zionists and of course to big business law firms, to successive Republican Administrations, to the neoconservatives on the Federal Bench, and to neoconservative academics.

The Media Transparency Web Siteshows the Society as having received grants in excess of US$8,000,000 from the extreme Right Wing Foundations identified as being the principal funders of the neoconservatives. It now has three divisions: a Students' Division, a Lawyers' Division with local chapters and specialist practice groups and a Faculty Division founded in 1999 to "foster the growth of rigorous traditional legal scholarship".

The Board of Visitors has included as Co-Chairmen Robert Bork (who else !) and Senator Orrin Hatch, the Senior Republican on the Senate Judiciary Commitee who, strangely, does not find his Co-Chairmanship of the FS inconsistent with his duties on the Judiciary Committee. Bork is of course a scion of the Heritage Foundation where one will also find his co FS Board Member, Edwin Meese III, Reagan's Attorney-General. Also on the Board is C. Boyden Gray, who is a partner of a Washington law firm active in environmental and regulatory matters (on the side of business, not of Greenpeace), former Counsel to George Bush Snr, and a board member of Citizens for a Sound Economy (another neoconservative pressure group) together with David Koch of the Koch Foundation one of the prime funders of the Neoconservatives. Donald Paul Hodel, President of Pat Robertson's Christian Coalition, provides the link to the Christian fundamentalists and zionists and pro-life groups which are so big a part of the Bush Administration constituency. Hodel is also a former anti-environmental Reagan Energy Secretary (the FS has a strong anti-regulatory bias). The Bush Energy Secretary, Spencer Abraham, also a well-known anti-environmentalist, was a co-founder of the FS who while a US Senator sat with Orrin Hatch on the Senate Judiciary Committee.

Of course Calabresi will be worried about the prospect of an Obama victory. Hopefully Obama nominations to the Federal bench would reverse the shift to the Neoconservative right which has taken place under Reagan and Bush. Hopefully, appointments of lawyers to an Obama administration would include those who favour proper regulation of corporate America, environmental protection, and civil rights rather than seeking to dismantle such protections of the public.

What is regrettable, is the extent to which the academic community in the USA has taken the considerably more than 30 pieces of silver of the extreme right foundations and appointed faculty members such as Bork, Calabresi and many others who have legitimised the originalist heresy as if it were genuine scholarship and given the Federalist Society objectives a facade of respectability they ought not to have.

The Federalist Society, the Heritage Foundation, the American Enterprise Institute are to US Republicanism what the Militant Tendency was to the British Labour Party: organisations designed to subvert the "broad church" or "one nation" appeal of the GOP to the centre ground and shift policy to the extreme end of the spectrum - to the trotskyite left in the case of Militant and to the corporatist fascist right in the case of the Neconservatives.

"The meeting will include a "who's who of conservative leaders -- economic, national security and social," said one attendee, who shared initial word of the secret session only on the basis of anonymity and with some details about the host and location redacted."

""There's a sense that the Republican Party is broken, but the conservative movement is not," said this source, suggesting that it was the betrayal of some conservative principles by Bush and congressional leaders that led to the party's decline."

"The post-mortem will then lead way to a focus on what role conservatives play going forward both in the GOP and the political system ahead of the 2010 midterms"

What Jonathan Martin is describing is a "party within a party" holding a secret conclave to decide how best to keep the GOP on the far right. The difference is that the US fascist equivalent of the trotskyites is far better funded, is thefore far more able to mould public opinion, and is therefore far more dangerous.

It is to be hoped that moderate GOP leaders will recognise this phenomenon for what it is and take steps to return the GOP to centre-right "one Nation" politics.

He also noted that the Court "didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted." That is to say, he noted that the U.S. Constitution as written is only a guarantee of negative liberties from government -- and not an entitlement to a right to welfare or economic justice.

Oh, Mr. DePalma, are you saying that the word "justice" changes its meaning when preceded bythe modifier "economic"? FW

Effectively, Calabresi just proved (though it was obvious before) that, in fact, he's not a law professor. Oh sure, he believes that Northwestern thinks he's a law professor and will quite willingly cash Northwestern's paychecks on that basis. But he would equally well cash Northwestern's paychecks if Northwestern believed Calabresi was a professor of magic, or astrology, or of playing poker, or of eating grass.

But Calabresi himself doesn't actually think there's such a thing as "law". Or, if there is such a thing as "law" for Calabresi, our current constitutional regime has nothing but a tangential or accidental relationship with it.

Now, there's no problem admitting that you oppose the regime and consider it unjust, and therefore opposing it's laws as "non-laws". However, you do not get to simultaneously oppose the very principal of the regime (democratic elections) and then also parade yourself as a professor or defender of that regime's laws.